2. Section 2

Interpretation of Section 2

3. Section 3

A portion of Article III, Section 2, was changed by the 11th Amendment.

Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Common Interpretation

Article III, Section 2 By Judith Resnik and Kevin C. Walsh

Article III, Section 2

By Judith Resnik and Kevin C. Walsh

Article III of the U.S. Constitution is devoted to the federal judicial branch. Thus, a first reminder is that this discussion is about the structure of the federal courts; states can independently create their own rules about their courts’ jurisdiction, judicial selection, and the scope of judicial power.

Article III’s first focus (Section 1) is on the existence of federal courts, and the Constitution specifies that the U.S. judicial system shall have one Supreme Court, and then leaves to Congress the decision about when to “ordain and establish” the lower (“inferior”) courts. Congress did so right away by creating 13 district courts and a smaller number of circuit courts in the First Judiciary Act of 1789. Congress has increased the number of lower courts many times since. For example, in 1901, Congress had created lines for about 100 federal judges; by 2001, that number was up to 850.

These federal judges obtain their office through provisions set forth in Article II, devoted to the Executive Branch, which gives the President the power to “nominate” judges of the Supreme Court and lower courts, and the Senate the authority to “advise and consent.” (Whether the Senate has an obligation to act on nominations in any particular way has been the subject of contemporary debate.) Thus, the individuals who become judges gain their office by virtue of the decisions of elected officials. But, once the judges are appointed, the Constitution insulates their independence. Article III, Section 1 protects all federal judges from losing their jobs and from having their compensation be “diminished.” Thus, we speak of such judges as “life-tenured,” and some of them have sued (and sometimes won) when Congress has failed to provide them with cost-of-living increases or other salary benefits.

Do note what Article III does not provide: a guaranteed budget for the federal courts. Yet, as noted, Congress not only has increased the number of federal judges over time but also, in the 1960s, added more personnel to the federal courts by creating the office of “magistrate” (now called magistrate judge) and in the 1980s, the office of “bankruptcy judge.” These officials have dedicated courtrooms and do a great deal of judicial work; their numbers double the size of the lower federal court judicial personnel. Moreover, starting after the Civil War, Congress sought to create a “federal presence” by building impressive federal courthouses (often combined with post offices). More than 500 federal courthouses now dot the landscape. In 1939, Congress chartered an Administrative Office of the United States that provides infrastructure support and, in 1968, the Federal Judicial Center, dedicated to research and education. Thus, without constitutional guarantees of budget and with the potentially malleable constitutional text, Congress has more often been a supporter of the federal courts than an antagonist.

Turn then to some language that has occasioned debate. Article III, Section 2 creates a series of categories of “cases” or “controversies” to which the judicial power “shall extend.” Examples include “all Cases, in Law and Equity,” arising under the Constitution, cases “of admiralty and maritime jurisdiction,” and controversies in which the parties come from different states (“diversity jurisdiction”).

Since the early days of the Supreme Court, Justices have developed a body of law interpreting Article III and structural ideas of separation of powers to define what the Constitution does not, which are the words “case” and “controversy.” The Court’s jurisprudence limits the federal courts so they do not provide general advice to the other branches. Lawyers talk about this body of law as focused on whether a claim is “justiciable.” Cases debate what kinds of injuries constitute harms (in today’s language “injury in fact”) sufficiently linked to proposed defendants’ actions to be appropriately redressed by courts.

The Constitution also allocates authority between the Supreme Court and other courts, as Article III describes the Supreme Court as having “original” jurisdiction over certain kinds of cases—which means that cases can start (originate) at the Supreme Court—and appellate jurisdiction over others. A huge puzzle is how to read the part of Section 2 providing that the Supreme Court “shall have appellate Jurisdiction, both as to law and Fact, with such Exceptions, and under Such Regulations as the Congress shall make.” This “Exceptions and Regulations Clause” has given rise to disputes over the extent of congressional control over the Supreme Court’s appellate jurisdiction. Does it authorize Congress to eliminate the possibility of appellate review in the Supreme Court for entire categories of cases—such as about school busing? Abortion? Same-sex marriage? Religion? And what authority might Congress have to craft analogous limitations on the jurisdiction of federal trial courts?

One account thinks of Article III as guaranteeing federal judicial authority, while another interpretation understands Article III to permit a great deal of congressional control over jurisdiction. Many scholars believe that the Constitution provides the most protection for the Supreme Court’s original jurisdiction, which seems odd from our current perspective, given how small this aspect of the Court’s work has turned out to be. Other limits on congressional incursions, on some views, come from “external” sources—that is, other parts of the Constitution, such as the Fifth Amendment’s protection of “due process” before deprivations of life, liberty, or property can occur, and the Fourteenth Amendment’s guarantee of equal protection of the laws.

In addition, Article III also protects jury decision-making by requiring a jury trial in federal criminal prosecutions, with the trial to take place in the state where the crimes were committed. Moreover, in a less-read part of Article III, Section 3, the Constitution defines Treason and insists that all convictions for treason not occur absent testimony from two witnesses or a confession “in open Court.” Unlike several state constitutions of the same era, the federal constitution does not include express commitments (echoing the Magna Carta) that all persons have rights to remedies and that all courts be open. Yet case law and interpretation read Article III as protecting values of openness and judicial independence. And some read the “petitioning clause” of the First Amendment along with the Due Process Clauses as protecting access to the federal courts.

Within the structure marked out by Article III, large swaths of extensive congressional regulation of federal court jurisdiction have existed without great controversy since the enactment of the Judiciary Act of 1789. Take diversity jurisdiction, which the Constitution provides without mentioning anything about how much is at stake. Since 1789, Congress has imposed a minimum “amount-in-controversy,” making some cases that fit the description (parties from different states) ineligible for federal jurisdiction. In fact, most of the law of federal court jurisdiction is statutory rather than constitutional in nature, and to determine the boundaries of federal court jurisdiction, one should begin by looking at statutes enacted by Congress.

Those statutes have to be placed into the context of Article III, and specifically the nine categories of cases to which the judicial power “shall extend.” Five ideas are relevant. A first is whether the jurisdiction is “exclusive,” meaning that cases can be filed only in federal court, or whether jurisdiction is “concurrent” with state courts. A second is what kinds of cases fall within the descriptions. A third is about whether Congress has to give jurisdiction or whether the Constitution automatically provides it, and/or what kinds of limits Congress can impose. The fourth is whether, once the federal courts have jurisdiction, that authority also provides them with the power to decide the underlying obligations of the parties. The fifth question focuses on remedies: what are the powers of Congress to limit or expand the remedial authority of courts?

Answers—whether right or wrong—are often blurry and shift over time. For example, while it seems straightforward to say that federal courts have jurisdiction over cases “arising under” federal law, it turns out that deciding when a claim stems from a federal right and when it depends on or turns on state law is complex. Moreover, even though a fundamental premise may be that any government’s courts should be open to cases arising under that government’s laws, in recent years the Supreme Court has held that even when arguing violations of federal antitrust or securities statutes, plaintiffs can be precluded from coming to federal court by virtue of another federal law, the Federal Arbitration Act, and forms given to employees and consumers to mandate the use of arbitration.

Article III also specifies that federal courts have jurisdiction over cases “affecting Ambassadors, other public ministers, and Consuls.” Again, the idea seems easy, in terms of providing access by persons from other governments to a federal court. But does that mean that if an ambassador seeks to divorce a spouse, a federal court has jurisdiction? The Supreme Court has said not, and thus reads the language as not mandating that such cases can come only into a federal court.

Other illustrations of the challenges of line-drawing come from the category of “admiralty and maritime jurisdiction.” These cases involve a distinct body of admiralty law and typically involve international or interstate relations in some way, making a federal forum more fitting than a state court. But what waterways count? And if a boat is docked and treated like a house, do the federal courts have jurisdiction? Recent decisions have not been unanimous on these very issues.

In addition to the subject matter creating federal jurisdiction, the Constitution describes several categories of “controversies” identified by reference to the parties. For example, controversies “to which the United States shall be a party” can come to federal court. But if a lawsuit is brought against an employee of the Postal Service, is the United States a party? Likewise, while the Constitution specifies that the federal judicial power extends to controversies between two states, a body of decisions debate the question of when a state is a party, and whether, for example, a regional body co-run by a few states can have access to federal courts by virtue of this provision.

Article III’s extension of federal judicial power to controversies “between a State and Citizens of another State” gave rise to one of the Supreme Court’s important early cases. In 1793, the Supreme Court held in Chisholm v. Georgia that a state could be sued in a federal court (the Supreme Court, in that case) without its consent. But in 1795, the Eleventh Amendment was ratified, and its odd phrasing has produced yet more law debating federal court jurisdiction. That provision states that the “Judicial power of the United States shall not be construed to extend to any suit in law or equity,” brought against the United States “by Citizens of another State, or by Citizens or Subjects of any Foreign State.” A simple reading might suggest that citizens of one state could sue their own state, but in 1890, the Supreme Court rejected a lawsuit with just that configuration and invoked the Eleventh Amendment in support of its holding.

As noted, another jurisdictional grant gives federal courts authority over private-party “diversity” jurisdiction—controversies “between Citizens of different States.” A standard account is that the concern was to insulate litigants from home-state bias. The related concern for impartiality is also used to account for federal judicial power reaching controversies “between Citizens of the same State claiming Lands under Grants of different States.” One might assume that once in federal court, the parties’ rights would be decided based on federally formulated rules of decision. But in 1938, the Supreme Court famously held in Erie Railroad Co. v. Tompkins, that federal judges must generally apply state law instead.

In sum, Article III has been enormously generative. The federal courts have, as Daniel Meltzer put it, been an important source of a “common intellectual tradition.” And since their inception, the federal courts have been the subject of intense interest and debate, with constitutional text as but one of many sources used to explain their metes and bounds.

Judith Resnik Arthur Liman Professor of Law at Yale Law School
Kevin C. Walsh Professor of Law, University of Richmond School of Law

Common Interpretation

Treason Clause

Treason Clause

By Paul T. Crane and Deborah Pearlstein

Treason is a unique offense in our constitutional order—the only crime expressly defined by the Constitution, and applying only to Americans who have betrayed the allegiance they are presumed to owe the United States. While the Constitution’s Framers shared the centuries-old view that all citizens owed a duty of loyalty to their home nation, they included the Treason Clause not so much to underscore the seriousness of such a betrayal, but to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition. Debate surrounding the Clause at the Constitutional Convention thus focused on ways to narrowly define the offense, and to protect against false or flimsy prosecutions.

The Constitution specifically identifies what constitutes treason against the United States and, importantly, limits the offense of treason to only two types of conduct: (1) “levying war” against the United States; or (2) “adhering to [the] enemies [of the United States], giving them aid and comfort.” Although there have not been many treason prosecutions in American history—indeed, only one person has been indicted for treason since 1954—the Supreme Court has had occasion to further define what each type of treason entails.

The offense of “levying war” against the United States was interpreted narrowly in Ex parte Bollman & Swarthout (1807), a case stemming from the infamous alleged plot led by former Vice President Aaron Burr to overthrow the American government in New Orleans. The Supreme Court dismissed charges of treason that had been brought against two of Burr’s associates—Bollman and Swarthout—on the grounds that their alleged conduct did not constitute levying war against the United States within the meaning of the Treason Clause. It was not enough, Chief Justice John Marshall’s opinion emphasized, merely to conspire “to subvert by force the government of our country” by recruiting troops, procuring maps, and drawing up plans. Conspiring to levy war was distinct from actually levying war. Rather, a person could be convicted of treason for levying war only if there was an “actual assemblage of men for the purpose of executing a treasonable design.” In so holding, the Court sharply confined the scope of the offense of treason by levying war against the United States.

The Court construed the other treason offense authorized by the Constitution similarly narrowly in Cramer v. United States (1945). That case involved another infamous incident in American history: the Nazi Saboteur Affair. Cramer was prosecuted for treason for allegedly helping German soldiers who had surreptitiously infiltrated American soil during World War II. In reviewing Cramer’s treason conviction, the Court explained that a person could be convicted of treason only if he or she adhered to an enemy and gave that enemy “aid and comfort.” As the Court explained: “A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but, so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy—making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength—but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.” In other words, the Constitution requires both concrete action and an intent to betray the nation before a citizen can be convicted of treason; expressing traitorous thoughts or intentions alone does not suffice.

To further guard against the prospect that the government could use false or passion-driven accusations of treason to undermine political opponents, the Treason Clause provides that the offense may only be proven by “open confession in court,” or on “the testimony of two witnesses to the same overt act.” The “overt act” requirement was designed both to limit the kind of substantive behavior treason could punish—only conduct, not mere expression—and to ensure that the conduct itself demonstrated a defendant’s intention to betray the United States. Believing that no witness could meaningfully testify to a defendant’s internal state of mind, the Cramer Court made clear that the defendant’s disloyal intent must be evident from the witnessed acts themselves; the government would have to prove that each overt act alleged “actually gave aid and comfort to the enemy.” The two-witness requirement was likewise geared to raising the bar to prosecution, applying “at least to all acts of the defendant which are used to draw incriminating inferences that aid and comfort have been given.” While there was no dispute in Cramer’s case that he had met with a man who turned out to be a German soldier in the United States, the Court concluded that these facts alone failed to establish Cramer had actually given that enemy soldier aid and comfort. The Court accordingly reversed Cramer’s treason conviction.

The Constitution also narrowed the scope of punishment for treason as compared to English common law. The final clause of this Section establishes that, while Congress has the general power to establish the penalties for committing treason, Congress may not “work corruption of blood, or forfeiture except during the life of the person” convicted of treason. “Corruption of blood” is a reference to English common law, which prohibited family members from—among other things—receiving or inheriting property from a person convicted of treason. Under the Constitution, that punishment may not extend beyond the life of the person convicted of treason.

Paul T. Crane Assistant Professor of Law, University of Richmond School of Law
Deborah Pearlstein Associate Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

Matters of Debate

Paul T. Crane Assistant Professor of Law, University of Richmond School of Law

Does the Treason Clause Still Matter? (Yes.) By Paul T. Crane

Treason prosecutions have essentially disappeared. Although treason was never a popular charge for federal prosecutors, treason prosecutions attended nearly every armed conflict in American history up to and including the Second World War.

Treason by Any Other Name By Deborah Pearlstein

The Constitution uses the word “war” in only two places: in Article I, most famously in allocating to Congress the power to “declare war,” and again here in Article III, giving the courts the power to hear cases requiring them to determine whether an individual is guilty of “levying war” against the United States.

Matters of Debate

Does the Treason Clause Still Matter? (Yes.) By Paul T. Crane

Does the Treason Clause Still Matter? (Yes.)

By Paul T. Crane

Treason prosecutions have essentially disappeared. Although treason was never a popular charge for federal prosecutors, treason prosecutions attended nearly every armed conflict in American history up to and including the Second World War. Since 1954, however, only one person has been charged with treason against the United States. And that single instance was relatively unusual: in 2006, a federal grand jury indicted Adam Gadahn for treason based on his participation in several al-Qaeda propaganda videos. Gadahn was not in custody at the time of his indictment, and he was later killed in a 2015 drone strike in Pakistan before he could stand trial in the United States.

The traditional explanation for why treason charges have vanished is that the Supreme Court in Cramer v. United States (1945) made treason so difficult to prove that it was no longer a realistic option for federal prosecutors. But that conventional wisdom is wrong. The Court in Cramer did make treason more difficult to prove than it otherwise could have, but it did not raise the bar so high that treason charges were no longer plausible. Indeed, the federal government pursued nearly a dozen treason prosecutions after the Court decided Cramer—and secured convictions in nearly all of those cases. As of 1954, there was little reason to believe that treason charges would fall into complete disuse.

A better explanation for the disappearance of treason prosecutions comes from another aspect of the Cramer decision. The government in Cramer argued that the Treason Clause should be interpreted leniently so that treason charges could be readily deployed during times of war. The Court dismissed the government’s concern, observing that “the treason offense is not the only nor can it well serve as the principal legal weapon to vindicate our national cohesion and security.” The Court further emphasized that “the power of Congress is in no way limited to enact prohibitions of specified acts thought detrimental to our wartime safety.” Critically, the Court indicated that federal prosecutors could pursue non-treason charges—offenses such as violating the Espionage Act or the Trading with the Enemy Act—without needing to satisfy the procedural requirements of the Treason Clause.

Another Perspective

This essay is part of a discussion about the Treason Clause with Deborah Pearlstein, Associate Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. Read the full discussion here.

This understanding was confirmed a few years later during the prosecution of Julius and Ethel Rosenberg for disclosing atomic secrets to the Soviet Union. The Rosenbergs were charged with conspiracy to commit espionage, not treason. But prosecutors and even the trial judge often conflated the charges, referring to the Rosenbergs as “traitors” and having committed “treason.” The Rosenbergs claimed that their convictions had violated the Treason Clause, because they were effectively convicted of treason but without the attendant constitutional safeguards. The United States Court of Appeals for the Second Circuit rejected the Rosenbergs’ argument in 1952, and the Supreme Court declined to intervene the following year.

By 1954, therefore, Rosenberg and Cramer had firmly established that prosecutors could bring non-treason charges without the procedural safeguards provided by the Treason Clause, even if the conduct at issue could plausibly be considered treasonous. At the same time, Congress passed several new national security laws, including the Internal Security Act of 1950 and the Communist Control Act of 1954. As the menu of federal crimes expanded, prosecutors had less and less reason to resort to treason charges. Why bother with the two-witness rule or the overt-act requirement when a variety of alternative (and substitute) offenses exist?

Because treason prosecutions have effectively disappeared, one might wonder about the continued relevance of the Treason Clause. But the Clause should not be relegated to the dustbin of history for at least two reasons. First and foremost, as the indictment against Adam Gadahn demonstrated, treason is not yet completely extinct. And because the Court in Cramer did not in fact make treason impossible to prove, there remains the possibility that treason charges could one day increase in relative frequency. If that does happen, the Treason Clause sets forth important requirements on how such charges must be proven.

Second, while the specific protections set forth in the Treason Clause may be limited to treason prosecutions, the principles underlying the Clause are not. Indeed, they should serve as important reminders about national security cases more generally. The Framers correctly believed there was a crucial distinction between traitorous actions and treasonous thought. Departing from English common law, which at the time recognized constructive treason, the Constitution required some sort of action before a person could be convicted of treason. That line between conduct and conscience dovetails with First Amendment values, and is one that should be respected beyond the narrow confines of treason. In addition, the Framers recognized that national security offenses are more likely to inflame public passions, and therefore deserve heightened procedural protections. This insight also extends beyond treason cases, and is one Congress, federal courts, and the public would do well to remember.

Paul T. Crane Assistant Professor of Law, University of Richmond School of Law

Matters of Debate

Treason by Any Other Name By Deborah Pearlstein

Treason by Any Other Name

By Deborah Pearlstein

The Constitution uses the word “war” in only two places: in Article I, most famously in allocating to Congress the power to “declare war,” and again here in Article III, giving the courts the power to hear cases requiring them to determine whether an individual is guilty of “levying war” against the United States. The Treason Clause is in this sense among the stronger pieces of textual evidence that the courts were to have as much a role in evaluating the existence of certain individual threats to national security as they would in adjudicating any other kind of crime.

Indeed, particularly since the attacks of September 11, the federal courts have faced dozens upon dozens of cases involving accusations that individuals have aided our enemies—individuals charged not with treason, but with providing “material support” to a terrorist or a terrorist group. Yet while the Treason Clause includes special rules of evidence to help guard against the danger that otherwise peaceful opponents of our government would face false accusations of supporting our enemies, neither the material support statute, nor other comparable federal offenses, contain any such safeguards. Is it really consistent with the Treason Clause for there to be such a ready way to avoid its protections? For government to be able to achieve the same ends—prosecution for aiding the enemy—without having to encounter any of the hurdles designed to guard against the abuses of such a charge that so concerned the Framers?

While the Cramer Court recognized Congress’ broad power to criminalize a wide range of offenses harmful to the United States, the Court was also careful to underscore the reality that even this power had its limits: “Of course we do not intimate that Congress could dispense with the two-witness rule merely by giving the same offense another name.” As one appeals court facing a terrorism prosecution arising out of the first World Trade Center bombing thus acknowledged: “The question whether a defendant who engaged in subversive conduct might be tried for a crime involving all the elements of treason, but under a different name and without the constitutional protection of the Treason Clause, . . . remains open.”

Another Perspective

This essay is part of a discussion about the Treason Clause with Paul T. Crane, Assistant Professor of Law, University of Richmond School of Law. Read the full discussion here.

Lower courts have for the most part been able to avoid answering the question directly by concluding that other crimes, however similar, do not contain all of the same elements required to prove treason itself. Unlike treason, the crime of material support, for example, carries no requirement that defendants have breached an allegiance owed to the United States; citizens and non-citizens alike can be charged with the offense. At the same time, there is at least some reason to worry that material support prosecutions of Americans and American organizations could involve forms of expressive activity—translating enemy statements into English, or producing training material on international law that an enemy organization could use to peacefully resolve disputes—that the Framers would have expected to be prosecuted, if at all, only under heightened procedural protection. And while the label “traitor” may still today be a uniquely powerful public condemnation, those convicted of providing material support to any one of the five dozen organizations the United States currently lists as foreign terrorists bear substantial penalties of their own.

The Treason Clause, much like the Constitution’s first ten amendments, is principally designed to protect core individual rights—most especially freedoms of expression and dissent. As Justice Jackson explained for the Cramer Court: “[T]he basic law of treason in this country was framed by men who, as we have seen, were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself.” This manifest purpose, coupled with the Clause’s placement among the powers of the Article III courts, suggests that a technical, element-by-element test to determine whether a new crime is in all circumstances exactly the same as the crime of “treason” may be an overly formal approach to determining whether a national security prosecution deserves the special evidentiary protections the Treason Clause requires. Where a prosecution amounting to a charge that an American has aided an enemy of the United States implicates such basic freedoms, the Treason Clause may provide an additional constitutional basis for arguing that the courts must take special care in protecting against prosecutorial abuse.

Common Interpretation

Article III, Section One

Article III, Section One

By Richard W. Garnett and David A. Strauss

Article III of the Constitution establishes and empowers the judicial branch of the national government. The very first sentence of Article III says: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” So the Constitution itself says that we will have a Supreme Court, and that this Court is separate from both the legislature (Congress) and the executive (the President). It is up to Congress to decide what other federal courts we will have. But one of the first things Congress did in 1789, the year the new government got going, was to set up a federal judiciary, including the Supreme Court—with six Justices. Today, we have a three-level federal court system—trial courts, courts of appeals, and the Supreme Court—with about 800 federal judges. All those judges, and the Justices of the Supreme Court, are appointed by the President and confirmed by the Senate.

Why did the Framers guarantee that we would have a Supreme Court (unless the Constitution was amended—a very difficult thing to do) but leave open the possibility that there would be no other federal courts, depending on what the politicians in Congress decided? The answer tells us something about the debates at the time the Constitution was written. To some people in the United States at that time, the federal government seemed almost like a foreign government. Those people’s main loyalty was to their states; the federal government was far away, and they did not feel that they had much of a say in who ran it. If you thought that way, an extensive system of federal courts, staffed by judges who were appointed by the President and who might not have a lot of connections to the state and its government, amounted to allowing the “foreign,” federal government to get its tentacles into every corner of the nation. Other Framers, though, thought that the federal government could not be effective unless it had courts to help enforce its laws. If everything were left up to state courts, states that were hostile to the new federal government might thwart it at every turn.

The compromise was that, just as the Constitution and federal laws would be the “supreme Law of the Land,” there would definitely be a Supreme Court—so a court created by the federal government, with judges appointed by the President, would get the last word, in case state courts did something that was too threatening to the new nation. But the extent and shape of the rest of the federal court system—the degree to which the federal government would be present around the nation—would get hashed out in day-to-day politics. The result is the large and powerful federal judiciary we have today.

The second sentence of Article III, Section 1, says: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” It’s pretty clear what’s going on here: this provision is designed to make sure that the judges are independent. They can decide cases according to what they think the law requires, without worrying about whether some powerful person—or even a majority of the people—will object. As Alexander Hamilton put it in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”

The language about “holding offices during good behaviour” has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of “treason, bribery, or other high crimes and misdemeanors.” Only fifteen judges have ever been impeached (that is, formally accused by the House of Representatives) and only eight have been convicted and removed from office. For practical purposes, any judge who does not commit a crime (or do something equally bad) has “lifetime tenure” and will stay in office until he or she dies or voluntarily steps down. And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries.

Most state court judges—unlike federal judges—are elected, not appointed; and some have to be re-elected, or approved by the voters, every few years. Those systems of elected judges are often criticized just because, unlike the federal system, judges might think they have to do politically popular things, or build up political connections, in order to keep their jobs, even if that means ruling in a way that doesn’t follow the law. Very few people think that federal judges should be elected. There are, though, some critics of lifetime tenure: those critics say that lifetime tenure causes judges to stay in their positions longer than they should—after they have become too old to do their job well, either just because of age or because they are out of touch with modern times. Maybe, these critics say, judges should be appointed for a fixed term of years—say 14 or 18 years—with no chance of being reappointed. They still couldn’t be fired and, since they would have to leave at the end of their term, they would have no reason to shape their rulings in a way that pleases powerful figures or popular opinion. But a change like this would almost certainly require a constitutional amendment, and the chance of its happening is extremely small.

Although the guarantee that judges will have lifetime tenure seems simple, it actually raises a difficult question in our system. In the federal government, there are many officials who do judge-like things—think of military courts-martial, for example—but who do not have the lifetime tenure that Article III seems to require for federal judges. Many of these officials are members of, or work for, administrative agencies—what is sometimes called the federal bureaucracy. Officials like this will rule on whether, for example, a company has used advertisements that deceive consumers, or a business has wrongly tried to prevent its workers from joining a union, or the government has not paid a person the disability benefits he or she is entitled to. Thousands of decisions of this kind are made every year by federal officials who are not considered “judges” for purposes of Article III, and therefore do not have lifetime tenure, but who are doing the kinds of things judges usually do: settle disputes between people. These administrative officials usually serve only for a few years, after which the President can replace them. There are safeguards to prevent officials of this kind from being openly biased or unfair, but because they are appointed so frequently, they are often thought to be more responsive to day-to-day politics than judges are.

Why do we allow these officials to resolve disputes in the way that judges do, even though they do not have the lifetime tenure guarantee that judges have? The answer is complicated, but the basic idea is that you generally have a right to appeal from a decision of one of these officials to a judge whose independence is protected by lifetime tenure. So judges—including, potentially, the Supreme Court—will have the final word, and that, the Supreme Court has said, is enough to maintain the principle of judicial independence enshrined in Article III.

Richard W. Garnett Paul J. Schierl/Fort Howard Corporation Professor and Concurrent Professor of Political Science, The Law School, University of Notre Dame
David A. Strauss Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School

Matters of Debate

Richard W. Garnett Paul J. Schierl/Fort Howard Corporation Professor and Concurrent Professor of Political Science, The Law School, University of Notre Dame

The “Judicial Power” and the Power of Judicial Review By Richard W. Garnett

The Constitution is clear about who has “the judicial Power of the United States”: the federal courts do—not the President, not the Congress, and not the states.

Not Your Founding Fathers' Judiciary By David A. Strauss

Matters of Debate

The “Judicial Power” and the Power of Judicial Review By Richard W. Garnett

The “Judicial Power” and the Power of Judicial Review

By Richard W. Garnett

The Constitution is clear about who has “the judicial Power of the United States”: the federal courts do—not the President, not the Congress, and not the states. It’s less clear, though, when it comes to what that power is. What is it, in other words, that the Constitution gives the “Judges . . . of the supreme and inferior courts” to do? We can assume that these judges do not have the power to enact legislation—the Congress has the federal “legislative Powers”—or the power to enforce the laws that Congress enacts—that’s the President’s job. So, again: what is it that federal judges do, and do not, have the “Power” to do?

One part of the answer is easy: the federal courts have the power to decide certain cases and resolve certain controversies, in a neutral and objective way, by interpreting the relevant laws and applying them to the relevant facts. However, what if the question before the judge has to do with the legality of the government’s actions or the constitutionality of a rule or law? Here, things get more complicated.

Alexander Hamilton famously wrote, in The Federalist No. 78, that “the judiciary is beyond comparison the weakest” of the federal government’s three branches. This is because, he thought, the judiciary has “no influence over either the sword or the purse”; it has “neither FORCE nor WILL, but merely judgment[.]” True, he admitted, the courts have to exercise what we now call “judicial review,” and decide whether or not legislators’ and officials’ actions are consistent with the Constitution—which is, after all the “supreme Law of the Land”—but this doesn’t mean they are superior to the other branches. It simply means that all branches and officials of the federal government are constrained by the Constitution that “We the People” established.

Another Perspective

This essay is part of a discussion about Judicial Power with David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School. Read the full discussion here.

This explanation didn’t satisfy everyone at the Founding—some critics of the Constitution said that the power of judicial review would “enable [the courts] to mold the government into almost any shape they please”—and it is still debated today. After all, it is one thing to say that courts may and should interpret the Constitution, and strike down laws and official actions that are inconsistent with it, but what if Congress, or the President, or state legislators and governors, disagree with the courts’ interpretation? A branch of government that gets to decide what other branches may or may not do, and that gets to overturn policy choices made by elected and accountable branches, hardly seems like “the weakest.”

Yes, judges are independent, and the Founders thought that this independence would protect their ability to uphold the law, even when doing so is unpopular. On the other hand, this independence can look like unaccountability and it can create what the great legal scholar Alexander Bickel called the “countermajoritarian difficulty.” Throughout our history, many of the Supreme Court’s most contested decisions have been in cases—think of cases involving, for example, gun regulations or abortion restrictions—where the Justices struck down duly enacted laws and, critics contend, acted against the will and legitimate choice of the majority. Our written Constitution means that some such cases are probably inevitable. At the same time, our commitment to democracy means that they are, and will continue to be, controversial.

Richard W. Garnett Paul J. Schierl/Fort Howard Corporation Professor and Concurrent Professor of Political Science, The Law School, University of Notre Dame

Matters of Debate

Not Your Founding Fathers' Judiciary By David A. Strauss

Not Your Founding Fathers' Judiciary

By David A. Strauss

Section One of Article III is a cornerstone of our legal system. It establishes the Supreme Court, and it is the basis of the federal court system. It has served those purposes from the very beginning.

At the same time, though, when we read this part of the Constitution—and many other parts of the Constitution, too—we can see how much things have changed since the nation was founded, in ways that the Framers of the Constitution could not have predicted. The Framers were prepared to have a country in which there was only one federal court: the Supreme Court. If that were the nation we lived in today, anyone who had a complaint about anything—about unlawful discrimination, or a violation of the right to free speech, or police brutality—would have to go to state court. The state court judge might be appointed by a governor or even a mayor, or might be elected. That would all depend on state law. State law would decide what kind of jury, if any, that person would get. You would, ultimately, have a chance to ask the U.S. Supreme Court to hear your case—but the Supreme Court is just one court and can only hear a relatively small number of cases each year.

Another Perspective

This essay is part of a discussion about Judicial Power with Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor, Concurrent Professor of Political Science, The Law School, University of Notre Dame. Read the full discussion here.

That is not the nation we live in today. Now it is important not to underestimate how much state courts do, even today. Even today, when we have an extensive federal court system, state courts decide many more cases than federal courts, by far. But while the rules that determine when you can get into federal court can be complicated and technical, federal courts are often available for people who think they have been deprived of their federal constitutional rights, and for people with other kinds of claims, too. At times in our history, federal courts have been havens for people who were victims of discrimination in the states where they lived. At other times, federal courts have been accused of being in the pockets of lawyers for the wealthy and privileged. But the “inferior” federal courts—federal courts other than the Supreme Court—have been tremendously important in the history of our nation even though, as far as the Framers were concerned, those courts might never have existed, or might have played only a small role.

One other way in which the Framers of Article III did not foresee the future is, if anything, even more remarkable. As we said in our joint statement, there are a lot of federal officials who do judge-like things but are not “Judges” who have the life tenure required by Article III. To a degree, the Framers of the Constitution did know about that. If you think about it, even an ordinary police officer acts a little like a judge: she will listen to your excuses and then decide whether to give you a ticket. There was no federal police force when the Constitution was adopted, but there were tax collectors, customs inspectors, and army paymasters, and they all had to make some decisions that were a little judge-like.

What the Framers could not have foreseen was that some day there would be thousands of federal employees like that, hearing millions of cases, often in formal settings that resemble courtroom trials. Important federal programs, like Social Security and Medicare, could not operate without employees like that. But although these employees make decisions that can have a big effect on people’s lives—acting, in many ways, just like judges—they are not Article III “Judges” and do not have the protections, or the prestige, that federal judges have.

The practical accommodation our system has reached (as we said in the joint statement) is that these decisions can be appealed to federal judges who do have life tenure, and ultimately can even go to the Supreme Court. If you just read Article III, Section One, you won’t see any of that. But this hugely important part of the federal government reflects another of the many ways in which our Constitution is not just an unshakable foundation but a flexible institution that can adapt to the needs of a nation, and a world, that are in countless ways different from what the Framers knew.

David A. Strauss Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School